Why We Need a Constitution (Now)
I attended the launch of the Scottish Constitution on 1st December in Glasgow. I have to say the attendance was disappointing but, in the light of my own views and those of many others, it was perhaps not surprising. There is a general feeling among supporters of the drive for independence that the constitution can be dealt with after independence – an opinion which, until Saturday, I shared.
The presentation by Mark McNaught was a compelling case for the adoption of a Scottish constitution – and at the earliest opportunity.
Let us consider the current situation. Only three countries in the world (four, if you prefer to think of Scotland as a separate country) do not have a written constitution. Every other country does and in the case of democracies, the rights of citizens to be protected from the excesses of their governments and their rights and freedoms are codified both nationally and internationally. We have no such contract with our government and this creates an effective vacuum where our rights as citizens are concerned. The rights we do have are not guaranteed in any way and only exist because no government has yet legislated against them. And such legislation is happening right now. Take the Investigative Powers Act just passed in Westminster. It is the greatest assault on the right to privacy in any democracy and would be patently unconstitutional in most other countries, but in Westminster, it goes through on the nod and without even a word in the media. There is no reason why further rights could not be stripped from citizens of what is increasingly becoming a fractious and ungovernable country.
There are also more serious long-term consequences for the overall functioning of government. The number of times the UK government has been taken to court over various actions it has taken – and lost – is staggering. But what happens as a consequence? The government changes the law to make the action in question legal. Job done. And no long-term legislation is considered. No planning for the future when, after all, any plans put in place by this government can be overturned by the next one. This gives us patchwork legislation, laws which are passed only when there is an immediate need for them, and passed often without parliamentary scrutiny or consideration for the knock-on consequences, while existing legislation – often archaic – simply lies on the statute books.
One of the more toxic consequences is a positively paranoid obsession with the concentration of power. Thus, with no constitutional guarantees , the powers of local authorities have been stripped to the point where there is no longer any meaningful local democracy. And, inevitably, there is conflict with the devolved administrations. With Northern Ireland effectively out of commission and Wales reduced to puppet status, this leaves Scotland, and the Scots are not taking abuse lying down.
In light of this obsession with power, it is perhaps inevitable that the UK government would want to remove itself from the EU. But Scotland doesn’t. Three quarters of us want to stay and many of us look to our own government to make that happen. The conflict comes to a head shortly and 29th March represents the point where any action we contemplate has to be put into effect.
So why do we need a constitution now, rather than at some time following independence?
Professor McNaught has made, in my view, an incontrovertible case for now rather than later. In the first place, we need a baseline protection for our right to self-determination including free elections without outside interference. This would make the process of holding a referendum considerably easier. Also, there are concerns on the part of supporters of the union – many of them “soft” supporters. These include suspicions that the SNP are trying to create a single-party state, and that old chestnut, pensions. In short, too many people want to stay with the devil they know rather than take a chance with the devil they don’t know. With no written constitution, people are no more confident of their place in an independent Scotland than they are now. Supporters of independence should not dismiss these concerns lightly – they matter deeply to those who hold them. If effectively addressed, their votes in favour of independence are what will take us comfortably over the finishing line. Constitutionally guaranteed rights can go a very long way toward creating confidence and ultimately support. In effect, having a baseline constitution in place can weaponise our campaign in what promises to be a very messy battle ahead.
For those who still think that the constitution can wait until after independence – that it has no value in the present campaign – there is a further matter to consider. When Scotland becomes an independent country and does so without a written constitution, we become vulnerable to outside interests, corporate in particular, which can subvert or derail our attempt to create the state that we want for ourselves. Currently we have considerable protection in the EU but, even if we continue our membership seamlessly after independence, we are still only protected under EU-wide legislation which covers only fifteen percent of all legislative areas. Furthermore, that protection is only courtesy of the constitutions of other member states. We need our own constitutional authority to be in place on the day of independence in order to maintain our freedom to design the country we want to live in.
Professor McNaught has carried out a huge amount of work so far but the constitution is not something to be handed down from on high. It is the will, the rights and the aspirations of the people of Scotland – a sort of instruction manual, if you like. With that in mind, the Constitutional Commission are asking everyone to become users on the scottishconstitution.com website, propose amendments, raise individual concerns and to comment on any specific matter which they have an interest in, to literally help develop the law. I implore everyone to get involved, you don’t need expertise and all comments and submissions are given equal consideration. The end result will define the kind of nation you and I want to live in and bring up our families. It is the key to our future.
The principal question now is how we encourage the Scottish government to unambiguously adopt this constitutional platform, so it becomes THE governing structure in an independent Scotland. Like other Scots, elected officials have never lived under a codified constitution and so, few appreciate its value and power. However, all can be convinced if the right arguments are advanced. Your job as citizens in a democracy is to read and understand the constitution and the rights it confers and contact your MSPs, speak with them and convince them of its importance for the future of Scotland. This will also help to bench test the democratic mechanisms that will make this constitution function.
Time is short. Please visit the site, add your own comments as you wish. Express your own concerns. And, please contact your MP,MSP and any party activists that you know.
Spread the word!